Posts Tagged ‘Oregon’

Today in Oregon: Blogging Former Church-Goer vs. Pastor with Anti-SLAPP Motion

Monday, May 21st, 2012

Defamation Defendant Julie Anne Smith (Image: Smith via Blogger.com)

A judge in Oregon is set today to hear the anti-SLAPP motion in the case of Pastor Charles O’Neal of the Beaverton Grace Bible Church, who is suing former church member Julie Anne Smith for defamation, seeking $500,000 in damages.

Smith’s blog, Beaverton Grace Bible Church Survivors, documents a cultish, creepy church. One commenter recounts a call for closet-raids to rid female church-goers of skimpy clothing.

An anti-SLAPP motion is a special kind of procedural device that allows the early summary dismissal of a lawsuit that is aimed at shutting down someone’s exercise of their First Amendment rights.

My bet is that Smith will win the anti-SLAPP motion, thus ending the lawsuit.

The best quick rundown of the fact’s is Smith’s own statement on her blog:

I began this blog in Feb. 2012 after noticing that the Google reviews I had posted of my former church were being removed. Days after the commencement of this blog, I received a legal summons suing me and three others for defamation to the tune of $500,000. The story of spiritual abuse needs to be told. People are being hurt emotionally and spiritually by pastors who use bully tactics and we need a place to learn, to talk freely, and to heal. I will not be silenced.

For me, the best evidece of Pastor Charles O’Neal’s sky-high creepster-factor is his own words, quoted by Smith on the blog, as he rails against her in a weird rant with frequent crazy-person use of ALL CAPS.

Nicely put is Smith’s February 25, 2012 response:

I wouldn’t waste my time on defamation – what is there to gain in that? I will, however, sacrifice my time and energy in speaking the truth when there is abuse of power going on and lives are at risk.

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Volokh Steps In to Help Blogger Crystal Cox Challenge $2.5 Million Defamation Judgment

Tuesday, January 10th, 2012


Eugene Volokh (Photo: Jeff Barnett-Winsby / UCLA)

Arthur Bright at Citizen Media Law Project blog has the latest on Obsidian Finance v. Cox in Oregon: Professor Eugene Volokh of UCLA Law has stepped in to work on an appeal of the $2.5 million libel judgment against blogger Crystal Cox, which was rendered by a federal court last month.

Critical is whether First Amendment protections established by the U.S. Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) will apply to Cox, or whether, as a blogger, she’s not a member of the “media.”

A post last month by Eric P. Robinson explores both the Gertz issue and the court’s ruling on the application of the Oregon shield law.

Dr. Darm Settles Defamation Suit Against Blogger Tiffany Craig in Portland, Oregon

Friday, December 30th, 2011

Jerry Darm headshotOregon plastic surgeon Jerry Darm (Image: Darm, via YouTube)

Blogger Tiffany Craig (Criminally Vulgar, @tcraighenry) has reported that the lawsuit between her and plastic surgeon Jerry Darm has been settled.

This happened back in October, but you’re just now finding out about it on Blog Law Blog, where, with paywall-less blogging, you get what you pay for.

Darm sued for defamation, but then dismissed the suit. It looks like Darm just bailed after he realized that all that was likely to happen was that he would lose and get stuck with legal fees for both sides, thanks to Oregon’s anti-SLAPP law. The complained-of tweet and blog post are staying up.

The suit appears to have arisen out of this blog post, in which Craig embedded a YouTube video, since removed, of an uploaded Dr. Darm television commercial. Underneath, Craig wrote:

Seen that around? Sure you have. If you watch television in Portland Dr Darm is ubiquitous. Especially on those local channels that show endless reruns of Two and a Half Men. He wants to fix you up good and spend thousands on cosmetic procedures that will get funneled straight into his Lake Oswego home.

What he should have added with his Results May Vary disclaimer is Dr. Darm Handed Over His Medical License Due To Disciplinary Action. …

EFFECTIVE 10/18/01 RECEIVED A LETTER OF REPRIMAND FROM OREGON, REQUIRED TO HAVE A CHAPERONE WHEN EXAMINING FEMALE ADULTS, AND ADDITIONAL CONTINUING MEDICAL EDUCATION COURSES. EFFECTIVE 01/08/09 STIPULATED ORDER OF 10/18/01 IS TERMINATED.
That’s right, he was censured by the state because he was examining female patients without a chaperone. If that’s not bad enough? Apparently needed just a teensy bit more education about how to respect the boundaries of his patients.

Oh and California just decided that he shouldn’t be licensed at all. If he tries to get licensed in California, he has to reapply.

And maybe you’re thinking, “so what if he examined a female patient without a chaperone? How is that a big deal.” You should really read the judgement which says:

“Licensee examined Patient A on August 3, 2000 and September 21, 2000 to evaluate the treatment results. Patient A repeatedly expressed concern about some “spider” veins on her legs, but that she could not pay for additional treatment. Licensee informed Patient A that he would provide her with free treatment at his clinic closing time. On or about November 16, 2000 at about 9:30 PM, Licensee used a laser to treat Patient A’s condition on her legs. At the conclusion of the treatment, as she was reclined on her back, Licensee leaned over Patient A and made intimate physical contact with her and inferred that would be his payment.”

That’s right, he tried to get a woman to sleep with him in exchange for cosmetic surgery.
I’m don’t think Results May Vary is quite enough to warn people off being treated by Dr. Darm.

Assuming the quotes are accurate, how could this be defamatory?

A report on the settlement by Alex Zielinski in the alternative weekly newspaper, the Portland Mercury, implies it was this:

Craig … didn’t note that Darm’s license is now renewed in Oregon.

So what? If the reasonable implication of Craig’s post was that Darm wasn’t licensed in Oregon, then, true, that could be actionable. But when I read Craig’s post, I certainly do not come away with the idea that Darm is unlicensed in Oregon. Quite the opposite. Craig’s post seems to imply that he still is licensed in Oregon.

A better candidate for the allegedly actionable content is this:

That’s right, he tried to get a woman to sleep with him in exchange for cosmetic surgery.

Indeed, the quoted material Craig uses does not support the literal truth of that statement. Making “intimate physical contact” with a patient and “inferr[ing] that would be his payment” does not literally mean that Darm tried to get the patient to sleep with him. But American defamation law is tolerant of this kind of poetic license. An instructive case on this point is another litigation I blogged about out of the District of Oregon in 2011: Obsidian Finance Group v. Cox. (What is up with the onslaught of Oregon defamation-by-blog cases?) According to heritage Portland newspaper The Oregonian the papers filed by Craig’s attrorney, Linda Williams, argued that “the gist” of the blog post was true and that the statements, in context, were opinions based on verifiable facts.

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The ALL CAPS Defense to Defamation

Monday, October 3rd, 2011

Sucks VERY Corrupt Liar EXPOSEFollowing up on Obsidian Finance Group v. Cox, should we go ahead and Confront the ELEPHANT IN THE ROOM?

The case introduces an underappreciated strategy for sidestepping defamation liability. Call it the ALL CAPS libel defense.

If you look closely at the decision, the key behind Cox’s victory seemed to be her wild use of ALL CAPS, Title Caps, and bold typeface, combined with a strong helping of over-the-top invective and continual references to forthcoming proof.

Take a look at this analysis from U.S. District Judge Marco A. Hernandez [pdf]:

Finally, the statements are not sufficiently factual to be susceptible of being proved true or false. Cox repeatedly poses her statements as questions or asserts that she will prove her accusations. For example, she asserts that “a Whole Lot” of the “Truth” is “Coming Soon,” that she “intend[s] to Expose every Dirty Deed,” that Padrick “WILL BE EXPOSED,” that “YOU [meaning Padrick] will BE Indicted SOME TIME, someday,” and that she “WILL PROVE IT ALL.” Padrick Decl. at pp. 1-13. She tells the reader to “STAY TUNED,” and she asks “Kevin Padrick, Guilty of Tax Fraud?” Id. She also states that Padrick is a “cold hearted evil asshole” and is a “Cruel, Evil Discriminating Liar.” Ex. 1 to Padrick Decl.

Defendant’s use of question marks and her references to proof that will allegedly occur in the future negate any tendency for her statements to be understood as provable assertions of fact. Her statements contain so little actual content that they do not assert, or imply, verifiable assertions of fact. They are, instead, statements of exaggerated subjective belief such that they cannot be proven true or false.

Considering all of the statements in the record under the totality of circumstances, the statements at issue are not actionable assertions of fact, but are constitutionally protected expressions of opinion. Plaintiffs’ motion for summary judgment on the liability of the defamation claim is denied.

One way of thinking about this is that Cox’s unconventional style underminded her own credibility to an extent that the court was loathe to treat her allegations seriously enough to make them the basis of a libel case. I’m sorry if that’s harsh. (I know Ms. Cox will probably read this.) But that’s how I interpret the judge’s ruling.

So, I guess the lesson is that if you are going to defame someone, (1) put your foot on the gas, (2) put your pinky on the shift key, and (3) DON’T HOLD BACK!

Hyperbolic “____sucks.com” Blog Cleared of Defamation Liability

Wednesday, September 28th, 2011

The Mark O Hatfield U.S. Courthouse in Portland, Ore. (Photo: EEJ)

An interesting case out of Oregon has held that because of the “looser, more relaxed communication style” of blogs, it was not defamatory for blogger Crystal Cox of obsidianfinancesucks.com to accuse bankruptcy trustee Kevin Padrick of various forms of perfidy.

Cox’s blogged allegations against Padrick includeed money laundering, perpetrating “fraud on the courts,” and engaging in various “illegal activity.”

Most stunning to me, however, was that in one post, Cox strongly implied that Padrick had engaged in “Solar Tax Credit Crimes.” If that doesn’t sound reputation-harming to you, consider the geographical context: This took place in Portland, Oregon, my friends.

True story: P-Town is so environmentally conscious, that even at McDonald’s, after you bus your own table, you have to separate out your recyclables.

So I can only imagine that for Porlanders, Solar Tax Credit Crimes are right up there with murder, arson, and aggravated failure to compost.

But Cox didn’t merely imply things. Cox blogged that Padrick was a “Thief,” a “CRIMINAL,” and a “Corrupt Attorney.”

If you were taking a law school exam, you would quickly identify those statements as being factual assertions, which, if provably false and reptuation harming, could give rise to a claim for defamation.

But the federal court in Oregon took a more realist approach. It concluded that, under the totality of the circumstances, a reasonable reader could not have regarded the statements as provably false assertions.

Why not?

The court said that “the extensive use of hyperbolic and figurative language, and the posting of several questions rather than statements,” tended to show that Cox’s statements were not reasonably to be regarded as provable factual assertions.

What’s more, it mattered that the medium at issue was a blog. The court’s August 23 order, according to the RCFP report, explained: “Blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact[.]”

Yikes. If this is a victory for blog freedom, it sure comes with a sting.

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